[Federal Register Volume 63, Number 44 (Friday, March 6, 1998)]
[Rules and Regulations]
[Pages 11122-11123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5841]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI77


Compensation for Certain Undiagnosed Illnesses

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule the provisions of an 
interim final rule which amended the Department of Veterans Affairs 
(VA) adjudication regulations regarding compensation for disabilities 
resulting from undiagnosed illnesses suffered by Persian Gulf Veterans. 
This amendment is necessary to expand the period within which such 
disabilities must become manifest to a compensable degree in order for 
entitlement for compensation to be established. The intended effect of 
this amendment is to ensure that veterans with compensable disabilities 
due to undiagnosed illnesses that may be related to active service in 
the Southwest Asia theater of operations during the Persian Gulf War 
may qualify for benefits.

DATES: Effective Date: March 6, 1998.
    Applicability Date: November 2, 1994.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
(202) 273-7230.

SUPPLEMENTARY INFORMATION: In response to the needs and concerns of 
Persian Gulf veterans, Congress enacted the ``Persian Gulf War 
Veterans' Benefits Act,'' Title I of the ``Veterans' Benefits 
Improvements Act of 1994,'' Pub. L. 103-446. That statute added a new 
section 1117 to Title 38, United States Code, authorizing the Secretary 
of Veterans Affairs to compensate any Persian Gulf veteran suffering 
from chronic disability resulting from an undiagnosed illness or 
combination of undiagnosed illnesses that became manifest either during 
active duty in the Southwest Asia theater of operations during the 
Persian Gulf War or to a degree of ten percent or more within a 
presumptive period, as determined by the Secretary, following service 
in the Southwest Asia theater of operations during the Persian Gulf 
War. The statute specified that in establishing a presumptive period 
the Secretary should review any credible scientific or medical 
evidence, the historical treatment afforded other diseases for which 
service connection is presumed, and other pertinent circumstances 
regarding the experience of Persian Gulf veterans.
    In the Federal Register of February 3, 1995, VA published a final 
rule adding a new Sec. 3.317 to title 38, Code of Federal Regulations 
to establish the regulatory framework necessary for the Secretary to 
pay compensation under the authority granted by the Persian Gulf War 
Veterans' Benefits Act (See 60 FR 6660-6666). As part of that 
rulemaking, VA, having determined that there was little or no 
scientific or medical evidence at that time that would be useful in 
determining an appropriate presumptive period, established a two-year-
post-Gulf-service presumptive period based on the historical treatment 
of disabilities for which manifestation periods had been established 
and pertinent circumstances regarding the experiences of Persian Gulf 
veterans as they were then known.
    In the Federal Register of April 29, 1997, VA published an interim 
rule with a request for comments that revised the presumptive period 
for disabilities due to undiagnosed illnesses suffered by Persian Gulf 
veterans. As revised, the presumptive period encompasses any such 
disability that becomes manifest to a compensable degree through the 
year 2001 (See 62 FR 23138-23139). Interested persons were invited to 
submit written comments concerning the interim rule on or before

[[Page 11123]]

June 30, 1997. VA received one comment from a concerned individual.
    The commenter stated that the extension of the presumptive period 
for disabilities due to undiagnosed illnesses is inconsistent with the 
Secretary's responsibilities under the law.
    Section 103(1) of Pub. L. 103-446 establishes that the first 
purpose of the legislation is to provide compensation to Persian Gulf 
War veterans who suffer disabilities resulting from illnesses that 
cannot now be diagnosed or defined, and for which other causes cannot 
be identified. The Secretary determined that in order to accomplish 
this purpose it was necessary to extend the presumptive period. That 
action clearly was consistent with his responsibilities under the law 
and we make no change based on this comment.
    The commenter stated that it is unfair to make a decision to extend 
the presumptive period without supporting data regarding the latency 
period of the illnesses at issue.
    Pub. L. 103-446 requires the Secretary to prescribe the period of 
time following Persian Gulf War service appropriate for the presumption 
of service connection for disabilities due to undiagnosed illnesses 
after reviewing, among other things, any available credible medical or 
scientific evidence.
    Despite a broad federal research effort, there is still 
insufficient data about the nature and causes of the undiagnosed 
illnesses to establish a specific latency period. What is clear, 
however, is that a two-year presumptive period prevented VA from 
compensating certain veterans with disabilities due to undiagnosed 
illnesses that may have resulted from their service in the Persian Gulf 
War. The Secretary therefore decided to extend the presumptive period 
until a time when it is reasonable to anticipate that the results of 
ongoing research may have shed enough light on these issues to guide 
future policies. For these reasons, we make no change based on this 
comment.
    This commenter also stated that the extension of the presumptive 
period for disabilities due to undiagnosed illnesses is unfair since we 
are still within the Persian Gulf War time period and veterans will, 
therefore, have significantly different presumptive periods.
    Once it became clear that a significant number of veterans were 
developing disabilities due to undiagnosed illnesses more than two 
years after the date that they last served in the Persian Gulf, the 
Secretary determined that the most equitable way to address this issue 
was to extend the presumptive period in such a manner that no Persian 
Gulf veterans with qualifying disabilities would be denied 
compensation. If the results of ongoing research eventually identify a 
latency period, VA will revise the presumptive period accordingly. In 
the meantime, no one should be denied benefits unfairly because of a 
presumptive period that, based on VA's experience with claims from 
Persian Gulf veterans, is too short. The department, therefore, makes 
no change based on this comment.
    Based on the rationale set forth in the interim final rule and this 
document, the interim final rule amending 38 CFR part 3 which was 
published at 62 FR 23138 on April 29, 1997, is adopted as a final rule 
without change.

    Approved: February 27, 1998.
Togo D. West, Jr.,
Acting Secretary.
[FR Doc. 98-5841 Filed 3-5-98; 8:45 am]
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